Mohalal Ghanshamdas Kukreja Vs Bakiralai Mulla Fazalali Bhanpurwala

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IN THE ORDINARY	HIGH COURT OF ORIGINAL	JUDICATURE AT CIVIL JURI	BOMBAY SDICTION
CHAM	BER SUMMONS IN	NO.99 OF	2005
	SUIT NO.1694	OF	2001
Mohanlal Vs. Bakirali Mulla	Ghanshamdas Fazalali	Kukre Bhanupurwala.	ja..Plaintiff .Defendant
Mr. P. Gangwani	i/b. A.V. Jain	& Associate for	the
Applicant/plaintiff. Mr. J.B.	Patel,	for	Defendant.
	CORAM: A.M. DATE :	KHANWILKAR, 8th August,	J. 2005
P.C.:
1. Heard Counse	l for the parties. Perused the pleadin	gs.
At the outset, I	may point out that	the Counsel for	the
defendant fairly sub	mits that the defen	dant will have	no
objection for granti	ng the amendment	in terms of	Schedule
paragraphs 1 to 15,	18 to 37 and 39	only. In other	words,
Chamber Summons is	opposed only wi	th regard to	proposed
amendment in terms	of paragraphs 19, 20,	38, 40 and 41	of the
Schedule appended to	the Chamber Summ	ons. In the	latter
paragraphs the plaintiff	seeks to place	on record events	which
have unfolded since	1990 between the part	ies. In so far	the
documents which are	sought to be	relied to support	the
proposed amendment, i	t is not the case	of the defendant	that
those documents are	nonexistent documents.	According to	the
defendant, however,	all these document	s were available	with
the plaintiff since 199	0 and much before	the present suit	came
to be instituted.	Besides, the	plaintiff had	instituted
another suit No.4315	of 1998 in respec	t of Commercial	Chamber.
It is the case	of the defendant that	for the first time	the
plaintiff intends to	introduce the case	of exchange of	shares
as is sought to	be made out in	the proposed a	mendment.
According to th	e defendant, therefore,	that will change	the

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frame	of	the suit.		Besides	, c	ontend	s,	Counsel	for	the
Defendant	th	at substantive	r	elief	is	cl	aimed	by	way	of
proposed	ame	ndment in	the	for	m	of	d	amages	against	the
defendant	for	dismissal of	the	su	it be	ing	Suit	No.5357	of	1990
and	Suit	No.2623 of	1993	on	the	allegat	ion	that the	same	have
been	dism	issed due to	the	neg	ligence	of	the	defendant	,	which
has	caused	prejudice	to	the	plaintiff.			According	to	the
defendant,		therefore, the		Chamber		Sum	mons	ought	to	be

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dismissed in so far as the proposed amendment in paragraphs

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19, 20, 38, 40 and 41 respectively.

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After going through the pleadings and considering the

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rival	submi	ssions, in	my	opinion, the amendment	sought	to be
introduced	by	way	of	paragraphs 19, 20, 38, 40	and	41 if
granted	will	not cau	se any	prejudice to the defe	ndant.	On the
contrary	the	same	wou	ld further the cause	of	justice in
resolving	al	l iss	ues be	tween the parties. If	the	proposed
amendment		is grant	ed tha	t will not change eith	er the	frame of
the	suit	or the	cause	of action. Besides, the	arg	ument of
defendant	that	it is	open	to the plaintiff to	take	recourse to
another	suit	for	the	reliefs claimed in	the	proposed
amendment,		in my	opinion,	needs to be rejected.	This	is so,
because	the	subject	matter	of the suit remains	the sa	me even
if t	he	proposed	amendme	nt is to be granted.	In my	opinion,
there	is	no ch	ange	in the cause of acti	on, w	hereas the
proposed		amendment		is consequential amendment	introduc	ed by
the p	laintiff	for	full,	complete and effectual	adju	dication of
all	issues	inter	se.	In the interest of	justice,	therefore,
even	the	proposed	amen	dment sought in terms	of pa	ragraphs 19,
20, 38	, 40	and	41	will have to be	allowed	to avoid

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multiplicity	of	proceedings betwee	n t	he	parties	for th	e	same
subject	matter.	It would	have	been	another	matter	if	the
defendant	was	to contend that	the	reli	efs claim	ed by	way	of
proposed	amendment	is barred	by	limita	tion.	Even	if	such

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contention is raised, that will have to be considered on its

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own merits at the stage of trial.

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Taking an over all view of the matter, I have no

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hesitation in making the Chamber Summons absolute in terms of

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prayer clause (a) with no order as to costs. Amendment to be

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carried out within four weeks from today.

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Needless to observe that it will be open to the

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defendant to file further written statement in view of the

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amended plaint to be served on the defendant.

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(A.M. KHANWILKAR, J.)

Mohalal Ghanshamdas Kukreja v. Bakiralai Mulla Fazalali Bhanpurwala

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Mohalal Ghanshamdas Kukreja v. Bakiralai Mulla Fazalali Bhanpurwala

Case brief

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What did the court decide?

What the court decided

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